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TMI Blog2019 (1) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for short, the Tribunal). 2. The appeal has been filed by the assessee by raising the following substantial questions of law : "i. Whether, in the facts and circumstances of the case, penalty under Section 78 of the Finance Act, 1994 is imposable for failure to pay service tax within the due dates, which were statutorily required to be complied with especially when the entire service tax along with interest were paid before filing of reply to the show cause notice by the appellant and the order of the Adjudicating Authority ? ii. Whether, in the facts and circumstances of the case, penalty under Section 78 of the Finance Act, 1994 is imposable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Adjudicating Authority is not supported by any material and that the same has been rendered without considering the specific contention of the assessee that the delayed payment of service tax was on account of delayed payment by their clients and that the payments received belatedly were first utilized to pay the wages, since their nature of business namely security service is labour intensive. 6. Therefore, we find that the Adjudicating Authority is not right in making an observation that the assessee had collected money from their clients, but not remitted to the Government. In other words, in the absence of any specific material available with the Department to come to such a conclusion, the Adjudicating Authority could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, in the strict sense of the matter, without a finding rendered by the Adjudicating Authority that there was an intention to evade payment of service tax, under normal circumstances, penalty could not be imposed. However, the facts of the case have not fully convinced us to waive the entire penalty, as there has been chronic default committed by the assessee in regular intervals by failing to pay the service tax within the time permitted under the Statute. Hence, we are of the considered view that this can be taken as a mitigating factor to reduce penalty, but not to waive the entire penalty. 10. Thus, considering the peculiar facts and circumstances of the case, we modify the order passed by the Tribunal to the extent of reducing penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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